EXHIBIT 4.1
AMENDMENT ("Amendment") dated as of July 12, 2002 between FIBERNET
TELECOM GROUP, INC. ("Company") and SDS MERCHANT FUND, L.P. ("SDS") to that
certain Promissory Note dated as of March 14, 2002 (as amended by the Amendments
dated as of June 14, 2002 and June 28, 2002, the "Note") by and between the
Company and SDS.
WHEREAS, pursuant to Section 10 of the Note, the Company and SDS may
amend the Note; and
WHEREAS, the Company and SDS wish to amend the Note.
NOW, THEREFORE, the parties agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise
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defined herein shall have the meanings ascribed to such terms in the Note.
Section 2. Agreement to Amend. Pursuant to Section 10 of the Note, the
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Company and SDS hereby agree to amend the Note as provided herein.
Section 3. Amendment.
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(a) Section 1(a)(i) is hereby amended and restated in its
entirety to read as follows:
"August 14, 2002;"
(b) Section 4(c) is hereby amended and restated in its
entirety to read as follows:
"the Proposed Financing shall fail to have been consummated by
August 14, 2002; or"
Section 4. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of New York, without giving
effect to the choice of law provisions.
Section 5. Successors and Assigns. This Amendment shall bind and inure
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to the benefit of the parties and their respective successors and assigns,
transferees, legal representatives and heirs.
Section 6. Headings. The headings of this Amendment have been inserted
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for convenience of reference only and shall not be deemed to be a part of this
Amendment.
Section 7. Entire Agreement. This Amendment and the other writings
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referred to herein or delivered pursuant hereto contain the entire agreement
among the parties hereto with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements and understandings with respect
thereto.
Section 8. Counterparts. This Amendment may be executed in any number
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of counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
* * * * *
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
FIBERNET TELECOM GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President and Chief Executive Officer
SDS MERCHANT FUND, L.P.
By: SDS Capital Partners, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Managing Partner
